Date: 20110315
Docket: T-751-10
Citation: 2011 FC 311
Ottawa,
Ontario, March 15, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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VIRGINIA JAKUTAVICIUS
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application
for judicial review of the final level grievance reply of the Director General,
HR Enterprise Services, Human Resources and Skills Development Canada (HRSDC),
dated April 12, 2010. The decision denied a grievance by the applicant
alleging that the actions of her employer, HRSDC, throughout the parties’
dispute over the classification of an acting position she occupied from April
1998 to May 2000 (the combined position), amounted to bad faith.
Background
[2]
The applicant filed a
series of grievances with HRSDC relating to the classification of the combined
position. Her grievances and their resolution travelled a long and winding
road over many years and unresolved issues still remain. This judicial review
application relates to a grievance filed by the applicant alleging that the
respondent’s actions throughout the dispute amounted to bad faith. Because of
the disposition I have reached in this application, and the brief reasons given
by the decision maker, it is necessary to set out in some detail the history of
the parties’ interactions.
[3]
Ms. Jakutavicius has
been employed with the Government of Canada for over 20 years and she remains
employed with HRSDC. In the spring of 1998, she occupied the position of
Chief, Coordination and Briefing, which was classified at the PM-06 level. Ms.
Jakutavicius was asked by her supervisor, Mr. Yves Poisson, to assume the role
of Acting Director, Federal-Provincial and Client Relations. She began serving
in this role in April 1998. The responsibilities of the new role were to be in
addition to those of her substantive position.
[4]
In her affidavit, Ms.
Jakutavicius explains the situation that ensued as follows. She raised
concerns regarding the appropriate classification and compensation for her new
role in the combined position. Mr. Poisson explained that the positions would
be officially combined once the incumbent resigned, and that a classification
review would take place at that time. For the time being, it was agreed that
the applicant would receive overtime compensation for her excess work. Ms.
Jakutavicius was not required to obtain pre-authorization for her overtime, but
she provided explanatory notes for all the overtime she worked of her own
accord.
[5]
Ms. Jakutavicius worked
in the combined position without incident for approximately 22 months. She
says she did not file a classification grievance during this period because of
the understanding that a classification review would take place when the
incumbent resigned. In 2000 problems began to arise between Ms. Jakutavicius
and her employer.
Overtime Dispute
[6]
In January 2000, Ms.
Jakutavicius worked overtime hours in preparation for a meeting to be held in
early February. She states in her affidavit that on February 7, 2000, Mr.
Poisson advised her that because of orders from Assistant Deputy Minister
Warren Edmondson, he could not approve payment for the overtime hours she had
worked in January. Mr. Poisson recommended that Ms. Jakutavicius address this
issue with Mr. Edmondson, which she did on February 18, 2000. Mr. Edmondson
approved Ms. Jakutavicius’ January 2000 overtime hours but indicated that from
that point forward she would have to obtain pre-authorization for overtime
hours. Ms. Jakutavicius also says that at this meeting Mr. Edmondson confirmed
that her combined position would be submitted for classification review.
[7]
This pre-authorization
requirement for overtime was put in place even though Ms. Jakutavicius
continued to perform the duties of the combined position. She later objected
to the imposition of this requirement because she believed that she was
operating at a Director level, and Directors are not normally subject to such a
requirement.
“Dismantling” of Combined Position
[8]
The applicant states
that on May 19, 2000, she received formal notification, by way of a branch-wide
email from Mr. Edmondson, that the Coordination and Cabinet Briefing Unit would
be reporting to the Assistant Deputy Minister’s Office as of May 23, 2000. She
says that the coordination and briefing functions had up until that point been
within her responsibilities. Ms. Jakutavicius says that the email announcement
“came as a betrayal and as a disillusionment to me as it demonstrated that
management had no intention of carrying out the classification review as
promised, but would deal with the situation by dismantling the responsibilities
of the combined role” and that it “demonstrated a deceitful and callous
disregard towards my personal dignity and professional reputation.”
Initial Grievances: Classification
Grievance 1 and Overtime Grievance
[9]
Ms. Jakutavicius
submitted a grievance to management on June 23, 2000, regarding its failure to
refer the combined position to a classification review. The grievance
complained that the position she occupied from April 1998 to May 2000, was not
properly classified. Another grievance filed at the same time challenged HRSDC’s
requirement that she obtain pre-authorization for overtime. Ms. Jakutavicius’
overtime grievance was denied at the final level.
[10]
Ms. Jakutavicius states
that in August 2000, the dismantling of her combined position originally
announced in May 2000 was implemented. She believes that the timing was in
retaliation for her filing of a third level grievance with respect to her
overtime grievance.
Decision not to Proceed with Classification
Review
[11]
Following the third
level grievance hearing on the classification grievance Ms. Jakutavicius agreed
with management that it would refer the combined position to a classification
review and she would hold her classification grievance in abeyance pending the
review.
[12]
Ms. Jakutavicius hired
a consultant to prepare a job description for the combined position and
submitted the description to management on October 15, 2001. On May 24, 2002,
she learned that HRSDC had not approved the job description she submitted and
that therefore a classification review for the combined position would not be
undertaken. Ms. Jakutavicius subsequently learned, in June 2002, that Mr.
Poisson had provided written comments dated December 18, 2001, regarding the
combined position, and that the comments had been considered by HRSDC before
making its decision not to refer the combined position to a classification
review. On September 30, 2002, she wrote to Mr. Denis Trottier, Corporate
Staff Relations Consultant, expressing her concerns regarding the failure to
provide her with a copy of Mr. Poisson’s letter and an opportunity to rebut his
comments.
[13]
In her affidavit, Ms.
Jakutavicius expresses her view that there were unnecessary and lengthy delays
and a lack of transparency and fairness on the part of management in deciding
not to refer her position to a classification review. She also says that it
was grossly unfair for management to fail to provide her with Mr. Poisson’s
letter and an opportunity to respond prior to making its decision. Ms.
Jakutavicius believes this conduct was retaliation for her insistence on
conducting a classification review even though the combined position had been
dismantled.
[14]
Given the respondent’s
decision not to undertake a classification review, Ms. Jakutavicius reactivated
her classification review grievance and proceeded through the grievance
process. The final level grievance decision was rendered on May 6, 2003. The
decision denied the grievance on the basis of timeliness.
Judicial Review of Classification Grievance
1
[15]
Ms. Jakutavicius missed
the deadline for filing an application for judicial review of the response to
her grievance due to incorrect advice she received from her union
representative. She brought a motion in Federal Court seeking an extension of
time. Her motion was dismissed by Justice Gauthier, but the Federal Court of
Appeal allowed her appeal and extended the time for filing an application for
judicial review: Jakutavicius
v Canada (Attorney General), 2004 FCA 289. Ms.
Jakutavicius then filed an application for judicial review which was allowed on
consent, and the grievance was sent back to HRSDC for re-determination. The
respondent subsequently agreed to refer the combined position for
classification review.
Classification Review
[16]
Ms. Jakutavicius and
HRSDC agreed on a work description for the combined position on November 15,
2005. On December 5, 2005, the respondent’s counsel sent the applicant a
letter advising her that the work description would be forwarded for a
classification review, and also alerting her to the possibility that if the
position were reclassified at the EX level she would have to reimburse all
overtime pay and the bilingual bonus she received during her tenure in the
combined position because employees at the EX level do not have these
entitlements.
[17]
By the spring of 2006
Ms. Jakutavicius had not received any communication relating to the status of
the classification review and her counsel wrote a series of letters dated March
24, 2006, May 8, 2006, June 13, 2006 and August 14, 2006 expressing concerns
regarding the delay, expressing his client’s belief that the delay was not
being incurred in good faith, and, in the final letter, advising that Ms.
Jakutavicius was prepared to bring a contempt motion in the Federal Court if
there were further delays. The record includes an internal email from the
respondent sent on August 16, 2005, just after this last letter from counsel,
where a manager notes that “[a]pparently, this matter has become increasingly
urgent …”
[18]
Further correspondence
was sent to the respondent on September 7, 2006 and October 12, 2006. On
September 25, 2006, the respondent sent the applicant’s counsel a letter
referring to a number of earlier telephone conversations between counsel for
the applicant and the respondent in which applicant’s counsel was informed that
a decision had not yet been reached, that the classification review process can
be lengthy, that the respondent was actively working on a determination, and
that the applicant would be informed as soon as a determination was reached. The
respondent estimated that a decision would be made by mid-November 2006, one
year after the description for the position had been agreed upon by both
parties.
[19]
On November 21, 2006,
Ms. Jakutavicius was informed that the classification review committee had
evaluated the combined position and determined that it should be classified at
the PM-06 level. Contrary to the respondent’s classification grievance policy
and procedure, Ms. Jakutavicius was not provided with an opportunity to make
submissions to the committee prior to this decision being made. The committee
did, however, meet with representatives of HRSDC.
Classification Grievance 2
[20]
Ms. Jakutavicius
grieved the classification review committee’s finding on the basis that the
committee took an inordinate amount of time and failed to follow the required
process in arriving at its decision by failing to consult her.
[21]
As a result of this
grievance a new classification grievance committee was formed, which included
two members external to Ms. Jakutavicius’ department. Ms. Jakutavicius was
given an opportunity to make a presentation to the committee, which she did.
[22]
The committee
ultimately determined that the combined position should be classified at the
EX-01 level, as originally requested by Ms. Jakutavicius, and the committee
informed her of this decision by way of letter dated June 29, 2007.
Reconciliation Dispute
[23]
Ms. Jakutavicius signed
a letter of offer for the combined position at the EX-01 level on September 28,
2007. The respondent proceeded to conduct a financial reconciliation between
the salary and benefits payable to Ms. Jakutavicius under the PM-06 position
and under the EX-01 position. The reconciliation ultimately indicated that Ms.
Jakutavicius owed the respondent a refund of payments she had received while
serving in the combined position because under the “EX” classification she was
not entitled to overtime pay or a bilingual bonus. The sum Ms. Jakutavicius
had received for overtime pay and bilingual bonus was greater than the difference
in salary between the PM-06 and EX-01 positions. On February 12, 2008, the
applicant was provided with a first rendition of the reconciliation. She
identified errors with the reconciliation and a revised reconciliation was
provided by the respondent in July 2008. Further revisions were required and
Ms. Jakutavicius was not provided with a final copy of the reconciliation until
March 11, 2010. Ms. Jakutavicius and the respondent are still disputing
whether or not she is entitled to a reimbursement of union dues paid while
serving in the combined position.
Demand for Compensation and Bad Faith
Grievance
[24]
On February 3, 2009,
Ms. Jakutavicius’ counsel sent the respondent a letter outlining the delay in
dealing with his client’s classification review, her ultimate “victory,” and
the injuries she suffered, which allegedly included damage to her reputation,
lost opportunities for career advancement, a loss of privacy, and diminished
quality of life due to stress. Ms. Jakutavicius’ counsel offered to settle the
entire matter on the following terms: (i) payment of $38,000.00 as a
reimbursement of legal fees, (ii) payment of $13,500.00 as general damages, and
(iii) a letter confirming the classification of the combined position. The
applicant’s counsel warned that if this offer was rejected, the applicant would
file a grievance alleging bad faith conduct by the respondent throughout the
entire matter and further cautioned that, if the grievance was denied, the
applicant would launch an application for judicial review in the Federal
Court. The respondent did not agree to the terms of settlement outlined by the
applicant, which Ms. Jakutavicius says is further evidence of the respondent’s
bad faith conduct.
[25]
On April 2, 2009, Ms.
Jakutavicius filed a grievance regarding the respondent’s “systemic failure to
act in good faith” in addressing the classification of the combined position.
The second level grievance hearing was held on October 16, 2009. Ms.
Jakutavicius’ current supervisor, Mr. Stephen Johnson, heard the grievance
despite the applicant’s concern that this would affect their working
relationship. The grievance was denied on January 7, 2010. The applicant
proceeded to a final level hearing which denied her grievance on April 12,
2010. It is this decision which is the subject of this judicial review.
Decision Under Review
[26]
The decision denying
Ms. Jakutavicius’ bad faith grievance was made by Ms. Maureen Grant, Director
General, HR Enterprise Services, HRSDC. Ms. Grant noted that since there was
no hearing at the final level, she carefully reviewed the information
available, including the 17 pages of submissions provided by Ms. Jakutavicius
and the presentation submitted by her counsel. Although the grievance
concerned a period of some 10 years, Ms. Grant’s entire decision is quite
brief. It is as follows:
This letter is in response to your final level grievance submitted
April 6, 2009. You grieve the Department’s systemic failure to act in good
faith in addressing the classification of your position in the combined role of
Director, Federal/Provincial and Client Relations / Coordination and Briefing,
which you performed from April 1998 to May 2000 in the Labour Program of the
former Human Resources Development Canada.
Since there was no grievance hearing at the final level, I have
carefully reviewed the information available to me and considered the
presentation submitted by your Legal counsel at the 2nd level, and
am now in a position to give you my response. Although I am sympathetic to
your situation, I must point out that you have used the recourse available to
you in 2000 and 2006 to resolve the classification issue and you were
successful. Also, I am aware that after you signed your letter of offer in
2007, negotiations took place to reconcile the financial entitlements between
the PM-06 and EX-01 classifications and that this issue was not resolved to
your satisfaction. I cannot conclude that the Department failed to act in good
faith based on your success through past grievance procedure.
For these reasons your grievance is denied. [emphasis added]
Issue
[27]
The
parties raised a number of issues; however, there is only one issue that
requires the Court’s attention: does the decision exhibit the justification, transparency and
intelligibility of a reasonable decision?
Analysis
[28]
The
applicant has not alleged that her right to procedural fairness was breached
because the reasons for the decision are inadequate. Rather, she submits that
the decision is unreasonable in light of the three features of reasonable
decisions, “justification,
transparency and intelligibility,” identified by the Supreme Court in Dunsmuir
v New Brunswick, 2008 SCC 9.
[29]
In
Dunsmuir, the Supreme Court, in collapsing the two former standards of
patent unreasonableness and reasonableness simpliciter into a new single
standard of reasonableness, described this new reasonableness standard as
follows:
Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law. [emphasis added] [para. 47]
[30]
This
expression of the reasonableness standard clearly directs the reviewing court
to consider not only the ultimate decision reached, but also to consider the
process used to reach the decision and, of particular importance here, to
consider the reasons articulated for the decision.
[31]
The
reasons provided for a decision may fulfill the requirements of procedural
fairness in the sense that the reasons meet the goals of focusing the decision
maker on the relevant factors and evidence, providing parties with the
assurance that their representations have been considered, allowing parties to
effectuate any right of appeal or judicial review they might have and allowing
reviewing bodies to determine whether the decision maker erred, and providing
guidance to others who are subject to the decision maker’s jurisdiction: VIA
Rail Canada v National Transportation Agency, [2001] 2 F.C. 25 (CA), at
paras. 17-21. Yet the same reasons which meet procedural muster may render the
decision unreasonable as a matter of substantive review. It is in this context
that one examines, based on the reasons provided, the justification,
transparency and intelligibility of the decision. Justification requires a decision
maker to focus on relevant factors and evidence. Transparency requires a
decision maker to clearly state the basis for the decision reached.
Intelligibility requires a decision maker to reach a result that clearly
follows from the reasons provided.
[32]
When
the decision under review is examined from the perspective of the reasons
provided for it, I find that it is neither justified nor intelligible, although
it is transparent. It is transparent in that the decision maker clearly sets
out the basis for the decision she reached; namely, that the applicant was
successful in her classification grievance.
[33]
The
decision under review is not justified because the decision maker has focused
on only one fact: that the applicant was successful in her classification
grievance. She has failed to consider any of the many other facts that were
put before her by the applicant. She has not stated in her reasons any of the
history between the parties as is set out herein nor has she stated that none
of it is relevant and provided an explanation for that view. She has
completely failed to engage with any of the evidence in this case. If the
decision maker was of the view that none of those facts were relevant, and had
stated so in her decision, with reasons, then the decision might be found to be
justified. Given the lengthy historical factual background to the grievance, a
decision that makes reference to only one consideration, the grievor’s ultimate
success, without either finding irrelevant or otherwise weighing the myriad of
facts relied upon by the grievor, cannot be said to be a decision that exhibits
the characteristic of justification.
[34]
Most
critically, the decision under review is not an intelligible decision because
the conclusion does not follow from the reasons provided. At the hearing of this application, the
respondent candidly acknowledged, quite appropriately, that a grievor may be
able to establish bad faith on the part of their employer relating to the
matter grieved despite having succeeded in having the grievance upheld. Given
that the ultimate success of a grievor does not automatically prove good faith
on the part of an employer, success in the grievance process cannot serve as
the sole reason for denying a grievance alleging bad faith when there are so
many facts relating to how it was handled that were not addressed. One must
examine all of the facts surrounding the handling of the grievance. Here, the
sole reason provided for the finding of good faith does not logically lead to
the conclusion reached. It is not an intelligible decision – it is
unreasonable and for this reason it must be set aside.
[35]
The
applicant’s grievance alleging bad faith on the part of her employer must be
remitted back for re-determination. It may be that the grievance procedures of
the employer require that the person who made this decision do so again as Ms.
Grant may occupy the only position authorized to make the decision. However,
if it is possible under the procedures in place to have someone other than Ms.
Grant adjudicate at the final level of the grievance procedure, then it is
appropriate that it be done. I add, but do not so order, that it would be
appropriate, given the nature of the grievance and the time that has passed,
that the decision maker be someone independent of HRSDC and that the decision
be rendered as promptly as possible.
[36]
The
parties are in agreement that it is appropriate that the successful party be
awarded costs of $4,000.00. I agree.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that:
1.
This
application is allowed and the decision rendered by Ms. Grant dated April 12,
2010, is quashed;
2.
The
grievance of the applicant alleging bad faith on the part of her employer is to
be redetermined by a person other than Ms. Grant, if possible;
3.
The
applicant is awarded her costs of this application fixed at $4,000.00,
inclusive of fees, disbursements and taxes.
"Russel
W. Zinn"
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